Colorado River ‘personhood’ case pulled by proponents

ByLindsay Fendt, Aspen Journalism |December 5, 2017

Rodeo Rapid, on the upper Colorado River. A federal judge has dismissed a case seeking personhood rights for the river, after the plaintiffs' attorney agreed with the state of Colorado that he should pull the lawsuit.

A novel case seeking personhood for the Colorado River will not proceed in federal court after the plaintiffs filed a motion Sunday to dismiss their own lawsuit and a judge on Monday granted the motion and dismissed the case.

The case, filed against the state of Colorado, would have been the first federal lawsuit seeking to establish legal rights for nature in the United States.

“The undersigned continues to believe that the [rights of nature] doctrine provides American courts with a pragmatic and workable tool for addressing environmental degradation and the current issues facing the Colorado River,” reads the motion to voluntarily dismiss the case from attorney Jason Flores-Williams. “That said, the expansion of rights is a difficult and legally complex matter.”

Flores-Williams opted to pull the complaint in part due to possible sanctions threatened by the Colorado attorney general’s office if he continued with the case in U.S. District Court in Denver.

“Situations change,” Flores-Williams said speaking Monday after withdrawing the case, “and what is best for the rights of nature movement is not to get involved in a lengthy sanctions battle, but to move forward with seeking environmental justice.”

According to a letter sent Nov. 16 by Scott Steinbrecher, a senior assistant attorney general for Colorado, the state was considering seeking sanctions against Flores-Williams under Rule 11 of the federal rules of civil procedure, which allows U.S. District Courts to punish lawyers for pleadings with improper purpose or frivolous arguments. The rule allows punishments ranging from censure to disbarment and the sanctions typically carry hefty fines.

“The purpose of this letter is to request that you consider voluntarily dismissing with prejudice the amended complaint,” Steinbrecher wrote to Flores-Williams on Nov. 16. “If you choose not to voluntarily withdraw your amended complaint with prejudice … you are hereby on notice that the defendant will pursue all sanctions and remedies available … .”

Flores-Williams filed his own voluntary motion to dismiss on Sunday, two days after he gathered with rights of nature activists outside the federal courthouse in downtown Denver. The group passed around a bowl of water from the Colorado River and played music affirming their commitment to creating a legal right to nature in U.S. courts.

The filing by Flores-Williams was titled an “unopposed motion to dismiss amended complaint with prejudice.” And in the process of agreeing to dismiss his own case, Flores-Williams summarized the situation as he saw it.

“The complaint represented a good faith attempt to introduce the rights of nature doctrine to our jurisprudence,” he wrote. “The rights of nature — specifically, the legal standing of natural entities — was first recognized by the Honorable William O. Douglas in his dissent in Sierra Club v. Morton and is being increasingly utilized as a legal doctrine by countries around the world.”

On the other hand, Flores-Williams also told the court that, “when engaged in an effort of first impression, the undersigned has a heightened ethical duty to continuously ensure that conditions are appropriate for our judicial institution to best consider the merits of a new canon. After respectful conferral with opposing counsel per (state law) plaintiff respectfully moves this honorable court to dismiss the amended complaint with prejudice.”

Flores-Williams then filed an amended complaint, on Nov. 3, that also named Colorado Gov. John Hickenlooper as a defendant and added two new plaintiffs, both from Moab, Utah: Owen Lammers, as Living Rivers’ executive director, and John Weisheit, as the “Colorado Riverkeeper.”

The attorney general’s office then sent its letter to Flores-Williams on Nov. 16, to which he responded in a letter, with a defiant tone, on Nov. 28.

Judge Nina Wang issued a court order Monday granting the motion to dismiss.

“When it comes to these big ideas no one owns them,” Flores-Williams said Monday. “There is movement on the ground now, and as long as that is there it will make its way into the courts.”

Also on Monday, Dec. 4, Colorado Attorney General Cynthia Coffman issued a statement on the case.

“The United States District Court has dismissed with prejudice the Colorado River Ecosystem’s amended complaint against Colorado,” Coffman said. “The Colorado River Ecosystem asked for the dismissal after my office filed a motion to dismiss the amended complaint. Under the terms of dismissal, the case cannot be brought again in federal court.”

In court records the party listed as filing the lawsuit was, in fact, “The Colorado River Ecosystem,” despite the ecosystem’s apparent lack of legal standing to file such a lawsuit.

“I do not doubt the personal convictions of those groups and individuals who claimed to speak on behalf of the ecosystem,” Coffman also said. “However, the case itself unacceptably impugned the state’s sovereign authority to administer natural resources for public use, and was well beyond the jurisdiction of the judicial branch of government. After my office presented counsel with these and other realities, he readied and wisely chose to withdraw the case. Colorado has always been a national leader in preserving our environment, and we will continue to protect and administer its natural resources as guaranteed by the constitution.”

Editor’s note: Aspen Journalism is collaborating on coverage of rivers and water with Glenwood Springs Post Independent, The Aspen Times, the Vail Daily, and the Summit Daily News. The Post Independent, the Times, and the Summit Daily News published the story on Tuesday, Dec. 5, 2017.